C-312/00

IV — The cases before the Court of First Instance I-11365

A — Case T-79/96 I-11365

B — Case T-260/97 I-11366

C — Case T-117/98 I-11366

V — Forms of order sought and grounds of appeal I -11367

VI — The individual grounds of appeal I -11368

2. Assessment I-11375

(a) Cause of the difficulties I -11376

(b) Severity of the difficulties I-11378

C — Third ground of appeal: the criteria governing the applicability of Article 16(3) of the Regulation (Case T-117/98) I-11381

1 — Original language: German.

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1. This appeal is brought by the Commis- sion against the judgment delivered on 8 June 2000 by the Court of First Instance in Cases T - 7 9 / 9 6 , T - 2 6 0 / 9 7 a n d T-117/98. 2 In that judgment the Court of First Instance found inter alia that the Camar Srl was set up in 1983 by the Italian Commission failed to fulfil its obligations investment group De Nadai in order to by failing to take certain measures provided import Somalian bananas into Italy. Until for in Council Regulation (EE.C) No 404/93 1994 it was the sole importer and until of 13 February 1993 on "the common 1997 the main importer of bananas from organisation of the market in bananas 3 Somalia. Between 1984 and 1990 banana ('the Regulation') which would have bene- production reached its peak in Somalia, fited two Italian undertakings, Camar and attaining an annual production of 90 000 Tico, which import bananas. In Case to 100 000 tonnes. Part of that production T-260/97 the Commission was ordered to was imported into Europe (51 921 tonnes pay compensation for the damage suffered in 1988, 59 388 tonnes in 1989 and 57 785 by Camar as a result of its refusal to adopt tonnes in 1990) and, in particular, into the measure. Italy by Camar (45 130 tonnes in 1990). On 31 December 1990 civil war broke out

2 — Joined Cases T-79/96, T-260/97 and T-117/98 Camar and Tico v Commission and Council [2000] ECR II-2193. 4 — See Joined Cases T-79/96, T-260/97 and T-117/98 (cited in 3 — OJ 1993 L 47, p. 1, amended several times. footnote 2), paragraphs 20 to 25 and paragraph 27.

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in Somalia and the normal flow of Camar's imported into the Community, and to issue imports was interrupted. From the out- it with licences corresponding to the dif- break of war until the common organi- ferences between those quantities. sation of the market came into force in July 1993 Camar supplied the Italian market by obtaining supplies from two ACP coun- tries, Cameroon and the Windward Islands, and from certain third countries from which it had already been importing bananas since 1988. From the introduction of the common organisation of the market in July 1993 to the end of 1997 Camar was I I I— Legal framework issued with category A import licences. In 1997 Camar was issued with import licences for a quantity of 7 545.723 tonnes for category A and 2 140.718 tonnes for category B. 5During that period the quan- tities of bananas imported from Somalia by 3. In accordance with the judgment of the Camar amounted to approximately 482 Court of First Instance, the legal frame- tonnes in 1993, 1 321 tonnes in 1994, work is as follows: 6 14 140 tonnes in 1995 and 15 780 tonnes in 1996. In 1997 banana production in Somalia was expected to be around 60 000 tonnes, but following climatic problems and in the absence of any suitably equipped port other than Mogadishu, exports from Somalia amounted only to 21 599 tonnes, 4. Regulation No 404/93 replaced the vari- 12 000 of which were marketed by Camar. ous previous national arrangements with a common trading system with third coun- tries. In the version in force at the material time, the Regulation provided for the open- ing of an annual tariff quota for banana imports from third countries and from the African, Caribbean and Pacific (ACP) countries. Article 15, which became Article 15a when the Regulation was Since the common organisation of the amended by Council Regulation (EC) market came into force, Camar has No 3290/94 of 22 December 1994 on the repeatedly requested the Commission to adjustments and transitional arrangements increase its third country banana quota by required in the agriculture sector in order an amount equal to the difference between to implement the agreements concluded the traditional quantity of Somalian during the Uruguay Round of multilateral bananas provided for by the Regulation trade negotiations, 7established a distinc- (60 000 tonnes) and the quantities which tion between 'traditional' and 'non-tradi- Camar actually imported or could have tional' bananas depending on whether they

5. Article 18(1) of the Regulation 8 pro- 7. According to the second subparagraph vided that a tariff quota of 2.1 million of Article 19(2) of the Regulation, for the tonnes (net weight) would be opened for second half of 1993 each operator was to 1994 and 2.2 million tonnes (net weight) be issued licences on the basis of half of the for each subsequent year for imports of annual average quantity marketed between third country bananas and non-traditional 1989 and 1991. ACP bananas. Within the framework of the tariff quota, imports of third country bananas were subject to a levy of ECU 75 per tonne and imports of non-traditional ACP bananas to a zero duty. Moreover, the second indent of Article 18(2) provided that imports outside the tariff quota, whether of non-traditional ACP bananas 8. Article 19(4) of the Regulation provided or of third country bananas, were subject to that if the tariff quota was increased the a levy calculated on the basis of the additional available quantity would be Common Customs Tariff. allocated to importers in the categories referred to in Article 19(1).

9. Under Article 16(1) and (3) of the 6. Article 19(1) of the Regulation divided Regulation, a forecast supply balance was the tariff quota thus opened, allocating to be prepared annually of production and 66.5% to the category of operators who consumption in the Community and of had marketed third country and/or non- imports and exports. Where necessary, in traditional ACP bananas (category A), particular to take account of the effects of 30% to the category of operators who exceptional circumstances affecting production or import conditions, the bal- ance could be adjusted during the market- 8 — As amended by Regulation No 3290/94. ing year.

16. Between 1994 and 1996, following 13. Article 27 of the same regulation auth- tropical storms Debbie, Iris, Luis and orised the Commission to adopt measures Marilyn which had damaged the banana for the implementation of the Regulation in accordance with the 'management commit- tee' procedure. 9 — OJ 1993 L 142, p. 6.

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plantations in Martinique, Guadeloupe, had caused enormous damage to the St Vincent and the Grenadines, St Lucia banana plantations in the Community and Dominica, the Commission adopted a regions of Martinique and Guadeloupe number of regulations. 10 and in the ACP States of St Vincent and the Grenadines, St Lucia and Dominica, that the impact of those exceptional cir- cumstances on production in the regions hit would continue to be felt for several months and considerably affect imports and supplies to the Community market, The regulations increased the tariff quota and that there was a risk that this would and introduced specific rules for the dis- result in a steep increase in market prices in tribution of the additional quantity among some regions of the Community. operators including or directly representing the banana producers affected by the storm damage. Those distribution rules derogated from the rules set out in Article 19(4) of the Regulation.

19. As to the system for increasing the 17. The Commission adopted the above tariff quota provided for in Article 16(3) of regulations on the tropical storms on the the Regulation, the Commission stated in basis of Article 16(3) and Articles 20 and the fourth recital to the regulations on the 30 of the Regulation. tropical storms:

20. In the fifth recital to those regulations on it to act, within the meaning of the the Commission stated: second paragraph of Article 175 of the EC Treaty (now Article 232 EC), with regard to the applications submitted for the 1996 marketing year. Having received no reply within the period provided for, Camar brought an action for declaration of failure '... Whereas the measures to be taken to act and for compensation on 28 May should have a specific transitional nature, 1996. within the meaning of Article 30 of Regu- lation... No 404/93; whereas, prior to the entry into force of the new common market organisation on 1 July 1993, existing national market organisations, in order to cope with urgent cases or exceptional circumstances such as the tropical storms 23. In Case T-79/96 Camar claimed inter Iris, Luis and Marilyn, included provisions alia that the Court of First Instance should: ensuring supplies to the market from other suppliers while safeguarding the interests of operators who are victims of such excep- tional events'.

— declare that, by failing to take the steps necessary to enable the applicant to overcome its supply problems resulting from the crisis in Somalia, the Com- mission had infringed Article 30 of the IV — The cases before the Court of First Regulation and Article 40(3) of the EC Instance Treaty (now, after amendment, Article 34(2) EC);

21. By order of 25 March 1999, the Court of First Instance joined Cases T-79/96, T-260/97 and T-117/98 on account of the connection between them. — declare that the Commission was under a duty to take appropriate measures for the future;

27. In addition, it ordered the Commission to pay compensation for the damage suf- 25. In Case T-260/97 Camar claimed inter fered by the applicant as a result of the alia that the Court of First Instance should: decision of 17 July 1997. It ordered the Commission to pay 90% and the Council to pay 10% of the costs in those proceed- ings.

— annul the Commission's decision of 17 July 1997 rejecting its application for transitional measures in the context of the tariff quota system for banana imports; C — Case T-117/98

28. By letter of 5 March 1998 Camar and — order the Commission to pay compen- Tico asked the Commission to adjust the sation for past and future damage tariff quota, as provided for in Article 16(3) resulting from its refusal to take of the Regulation, for the first two quarters account, when calculating category B of 1998 to take account of imports from licences, of its reference quantity under Somalia in 1996 following the reduction in normal circumstances for the three the quantities of Somalian bananas avail- years immediately preceding the out- able as a result of the meteorological break of civil war in Somalia; phenomenon known as 'El Niño' which

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had damaged banana plantations in Soma- decision of 23 April 1998 rejecting the lia between October 1997 and January application which the applicants submitted 1998. on the basis of Article 16(3) of the Regu- lation. It declared the action for compen- sation inadmissible.

OPINION OF MRS STIX-HACKL — CASE C-312/00 P

— order the applicants in the proceedings 37. The French Republic, which intervened before the Court of First Instance to in the proceedings in Case T-79/96 in pay the costs of the proceedings before support of the Commission and in Case that Court and those of the present T-260/97 in support of the Commission proceedings. and the Council, claims that the Court should set aside the judgment, dismiss the actions and order Camar and Tico to pay the costs.

33. The Commission relies on the follow- ing grounds in its appeal:

38. Camar and Tico, and the Italian Republic which intervened in support of 34. With regard to Cases T-79/96 and Camar and Tico in the proceedings in Case T-260/97, it maintains that the Court of T-79/96, contend that the Court should First Instance incorrectly applied the con- dismiss the appeal and order the Commis- ditions necessary for the application of sion to pay the costs. Article 30 of the Regulation (second ground of appeal).

1. Submissions of the parties

40. The Commission, the Council and the 43. Moreover, the Council maintains that French Government submit that by declar- if the circumstances had actually required ing the action for annulment admissible, an adjustment of the tariff quota within the the Court of First Instance has infringed its meaning of Article 16(3) of the Regulation, own case-law and that of the Court of the Commission would not have been Justice. obliged to allocate the additional quantities to importers of Somalian bananas. Contrary to what the Court of First Instance states in paragraph 96 of its judgment, Camar and Tico would not have 41. For those parties it is clear that the been the main ones to benefit from the measure sought by Camar, namely the Regulation which the Commission refused increase in the quota for imports of to adopt. bananas from third countries and non -traditional ACP countries, could only have been adopted as a measure of general, abstract application, that is to say, as a legislative measure which, according to 44. Camar and Tico, and the Italian Gov- case-law, may be contested only on con- ernment, submit that the conclusions of the dition that the number or the identity of the Court of First Instance concerning the persons to whom such an act would apply admissibility of the action for annulment at any given time may be determined with against the Commission's refusal to apply sufficient certainty. That test would be Article 16(3) of the Regulation cannot be carried out on the basis of an objective contested in an appeal because such con- factual and legal situation which would be clusions are based on facts which affect defined by the purpose of the measure in the position of both undertakings on the question. market.

2. Assessment 49. According to consistent case-law, there must be certain attributes peculiar to appli- cants or a particular factual situation which differentiate such applicants from all other 46. This ground raises the question persons. 11 whether the Court of First Instance has assessed the admissibility of the action for annulment correctly and whether the test for individual concern for the purposes of the fourth paragraph of Article 230 EC has been applied correctly. 50. First of all, the Court of First Instance is correct in so far as Camar and Tico were not affected in the same way as the other undertakings. However, that statement also applies to the other undertakings in that no 47. In paragraph 96 of the judgment, the undertaking — even if it has the same Court of First Instance examines whether share of the market — is actually affected there are circumstances by reason of which by a measure (in this case the refusal to the Commission's regulation differentiated adjust a quota) in the same way as another. Camar and Tico from all other persons concerned. It bases its reasoning on the point, crucial to the decision, that the main importer of Somalian bananas was Camar until 1997 and Tico from the fourth quarter of 1997. In that Court's view, the reduction in the quantities of bananas available caused by the floods in Somalia 51. For the fourth paragraph of Article 230 'thus particularly affected' those undertak- EC to be applied correctly, there has to be ings. The Court of First Instance concludes instead a particular form of legal concern. that those undertakings would have also been the main ones to benefit from the 11 — See, in particular, Case C-451/98 Antillean Rice Mills v increase in the tariff quota. Council[2001] ECR I-8949, paragraph 49, on that point.

55. Accordingly, it should be pointed out 52. Although it is true that Camar and Tico that to possess specific rights and sub- were differentiated from others in so far as sequently be prevented from exercising they were affected in a particularly serious them was regarded as decisive by the Court way, the crucial question is, rather, of Justice in Codorniu. 17 The relevance of whether that 'situation' is also a determin- specific rights as opposed to the economic ing factor under settled case-law. Although situation is shown both by the Deutz in assessing the admissibility of an action case, 18 which was decided before the judg- for annulment the case-law of the Court of ment in Codorniu, and the Asocarne case, Justice focuses expressly on the effects of a which was decided with express reference measure, 13 that does not mean that the only factor to be taken into account is how an economic position is adversely affected. 14 — Case C-358/89 Extramet v Council [1991] ECR I-2501, paragraph 17. 15 — However, for a broad interpretation of the judgment in Codorniu see Arnull, 'Private Applicants and the Action for Annulment since Codorniu', Common Market Law Review, 2001, 7, 43; Denis Waelbroeck, Denis Fosselard, Common Market Law Review, 1995, 257, 266 et seq.; Nihoul, 'La recevabilité des recours en annulation intro- duits par un particulier à l'encontre d'un acte commun- autaire de portée générale', 1994, 171, 184; Vandersanden, 'Pour un élargissement du droit aes par- ticuliers d'agir en annulation contre des actes autres que les 53. Similarly, the fact that Camar and Tico décisions qui leur sont adressées', Cahiers de droit européen, 1995, 535, 544. were the biggest importers is not sufficient 16 — See also, for instance, the Opinion delivered by Advocate General Cosmas in Case C-321/95 P Greenpeace Council v Commission [1998] ECR I-1651, point 91, regarding this interpretation. 12 — Case T-47/95 Terres Rouges and Others v Commission 17 — Case C-309/89 Codorniu v Council [1994] ECR I-1853, 11997] ECR II-481, paragraph 46. paragraph 21, concerning the use of a registered trade 13 — See in that regard Canedo, 'L'intérêt à agir dans le recours mark for a particular sparkling wine. en annulation du droit communautaire', Revue trimes- 18 — Case 26/86 Deutz und Geldermann v Council [1987] trielle de droit européen 2000, 451, 491. ECR 941.

61. Similarly, the Court of Justice held in Sadam 'that the fact that, when Regulation No 2613/97 entered into force, the appel- lants were its only actual addressees as far 58. Moreover, the Court of First Instance as producers of beet sugar in southern Italy held in Van Parijs 21 that '... [the fact that are concerned is not in itself sufficient for certain operators] are economically more them to be regarded as individually con- cerned by the regulation'. 2 3

19 — Order in Case C-10/95 P Asocarne v Courtal [1995] ECR I-4149, paragraph 43. 22 —Case C-209/94 P Buralux and Others v Council [1996] 20 — Case T-47/95 (cited in footnote 12, paragraph 47). ECR I-615, paragraph 29. 21 — Order in Case T-11/99 Van Parijs and Others v Commis- 23 — Case C-41/99 P Sadam and Others v Council [2001] sion [1999] ECR II-2653, paragraph 50. ECR I-4239, paragraph 29.

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62. Even if it is assumed that Camar and and consequently would have to be Tico had to suffer serious consequences assessed differently at different times. because the Commission had not adopted Moreover, not even the undertaking just specific measures, that fact alone is not behind the market leader would have locus sufficient. In Antillean Rice Mills the Court standi. Furthermore, a test which is based also required the applicant to have been directly or indirectly on market power 'affected by the safeguard measures in would lead to unequal treatment of large question by reason of attributes distin- and small undertakings. 26 guishing it from all other economic agents'. 24

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is legally protected (which is the crucial have been examined whether that legal matter in deciding this case), the solution in situation would have enabled Camar to Codorniu cannot be transferred to this overcome the difficulties arising in 1995 case. and 1996 in connection with the imports from Somalia.

69. Accordingly, since the Court of First Instance did not apply Article 230(4) EC correctly, this ground of appeal is well 71. The Commission and the French Gov- founded. I therefore propose that the Court ernment also submit that the Court of First of Justice should declare the action in Case Instance is wrong to assume that economic T-117/9 8 inadmissible and set aside the survival, that is to say 'the threat to the judgment. [operator's] existence' 28 is not a condition necessary for the application of Article 30 of the Regulation and that the Commission should also have intervened in cases other than the present case. In that regard the Commission and the French Government rely on paragraph 43 of the judgment in T. Port, 29 in which the Court of Justice held: '[o]n the other hand, Article 30 of the B — Second ground of appeal: incorrect Regulation authorises and, depending on application of Article 30 of the Regulation the circumstances, requires the Commis- (Cases T-79/96 and T-260/97) sion to lay down rules catering for cases of hardship arising from the fact that importers of third-country bananas or non- traditional ACP bananas meet difficulties threatening their existence...'.

73. Moreover, Camar and Tico, and the requirements: first, the difficulties must Italian Government, interpret the judgment arise as a result of the transition from the in T. Port differently from the Commission old system to the new system and, sec- in so far as they believe that the subject- ondly, the difficulties must constitute a matter of that judgment is not whether one danger to the operator's survival. of the conditions for application of Article 30 of the Regulation concerns difficulties which pose a danger to exist- ence but rather whether Article 30 and Article 16(3) of the Regulation conflict with one another. Therefore, paragraph 43 of the judgment in T. Port must be under- stood in the light of the relevant question 76. However, the wording of Article 30 of referred for a preliminary ruling in that the Regulation does not reflect those case. requirements in such clear terms. Never- theless, it can be inferred from the fact that the measures to be taken by the Commis- sion are intended 'to assist the transition' that the difficulties must be caused by the transition from the old to the new legal situation.

2. Assessment

79. Accordingly, Article 30 of the Regu- (a) Cause of the difficulties lation is interpreted in the case-law of the Court of Justice 34 and the Court of First Instance 35 in such a way that it is appli- cable where both requirements for appli- cation (specific cause and severity of the difficulties) are met. 82. Since, according to settled case-law, 39 Article 30 of the Regulation applies only to those measures which are designed to overcome difficulties which have arisen as a result of the transition from a national legal situation to the organisation of the market established by the Regulation, the 80. It should be pointed out for the sake of Court of First Instance should have made completeness that application of Article 30 observations to that effect. of the Regulation is also subject to the condition that the measures that must be taken are necessary. 36

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84. As far as an analysis of the legal limited the scope for imports which existed situation previously in force in Italy is under Italian legislation prior to Regulation concerned, the Court of First Instance No 404/93'. stated the following in paragraph 140 of its judgment:

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87. In that regard the Court of First and Article 51 of the EC Statute of the Instance held in paragraphs 142 and 143 Court of Justice, an appeal lies on a point of its judgment: of law only. 'Therefore, the Court of First Instance has sole jurisdiction to find and appraise the facts, except in a case where the factual inaccuracy of its findings is demonstrated by the evidence adduced before it. The appraisal of the facts does '... At the hearing the Commission accepted not constitute, save where the clear sense of that Camar might have experienced dif- the evidence produced before it is distorted, ficulties as a result of the introduction of a question of law which is subject, as such, the Community system. to review by the Court of Justice'. 42 Consequently, the examination must be limited to points of law.

Consequently, even if the applicant's dif- ficulties in obtaining supplies of bananas were associated with the civil war which occurred in Somalia at the end of 1990, they are a direct consequence of the intro- duction of the common organisation of the (b) Severity of the difficulties market because the system in fact signifi- cantly reduced the scope provided under the previous Italian arrangements for Camar to replace the shortfall in Somalian 90. The wording of Article 30 of the bananas'. Regulation must initially be used as a basis for consideration of the second constituent requirement contained in that provision too.

93. With regard to individual operators, what must be determined is how severely the undertaking concerned has to be affected 4 5 before the Commission is 96. On the other hand, however, the judg­ obliged to adopt measures. ment in T. Port can also be interpreted in such a way that it does not relate to a particular situation but sets out a generally applicable principle 46 in accordance with which Article 30 of the Regulation applies only to 'cases of hardship' or 'difficulties threatening [the operator's] existence'. 94. If it is to be assumed that the terms 'cases of hardship' and 'difficulties threatening [the operator's] existence' in the judgment of the Court of Justice in T. Port relate to the same terms used in the question submitted by the referring court, and if it is to be borne in mind that the answers given by the Court of Justice in 97. However, even on that assumption it is preliminary ruling procedures restrict still unclear what is meant by 'cases of themselves to the questions referred, it can hardship' or 'difficulties threatening [the be concluded that 'cases of hardship' and operator's] existence' and in particular, 'difficulties threatening [the operator's] whether, as the Commission argues, the existence' satisfy the conditions laid down survival of the operator concerned is in Article 30 of the Regulation in any case. always involved. Accordingly, the terms 'cases of hardship' and 'difficulties threatening [the operator's] existence' are wider than is implied by the Commission's reference to survival.

'The Community institutions are required to act in particular 47 when the transition to the common organisation of the market infringes certain traders' fundamental 101. However, it can be inferred neither rights protected by Community law, such from the wording of Article 30 of the as the right to property and the right to Regulation nor from the operative part of pursue a professional or trade activity'. the judgment in T. Port that Article 30 applies only to circumstances where sur- vival is endangered. Rather, the term 'dif- ficulties of a sensitive nature' referred to in that provision should suffice. It is an imprecise legal expression which cannot, as pointed out already, be confined to situations where survival is at stake. 99. It is also apparent from the following (general) findings in the judgment in T. Port that the Court of Justice did not intend to apply too strict a principle:

102. In that connection, it is important to remember that when applying Article 30 of the Regulation, notwithstanding its obli- gation to adopt measures, the Commission 'As the Court held... , the Commission, or has a discretion when assessing the dif- the Council, as the case may be, are, ficulties as well as when deciding which however, obliged to take action if the measures are to be adopted. Although this difficulties associated with the transition is subject to review by the Court of from national arrangements to the common Justice, 49 such review is limited. organisation of the market so require'. 48

49 — Paragraph 38; cf. also Case T-254/97 Fruchthandelsge- sellschaft Chemnitz v Commission [1999] ECR II-2743, 47 — Emphasis added. paragraph 67, and Case T-252/97 (cited in footnote 40, 48 — Judgment cited in footnote 29, paragraph 38. paragraph 69).

109. The Commission also claims that the Court of Justice has before it all the facts necessary to adjudicate on the matter with- 106. Since, in my view, the ground of out referring the case back to the Court of appeal concerning the incorrect appraisal First Instance. of the admissibility of the action for annul- ment in Case T-117/98 is well founded, that is to say Camar and Tico do not have locus standi, I therefore believe that it is unnecessary to examine that ground, which 110. The Council contests in particular the concerns the factual and legal aspects of assessment made by the Court of First Case T-117/98. Instance in paragraph 206 of the judgment,

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according to which it is the distinction 113. As already stated, the Court of First between legislative measures and individual Instance interpreted Article 30 of the measures which is decisive in establishing Regulation correctly in law and, accord- non-contractual liability. In the judgment ingly, also established the unlawfulness of in Bergaderm, 50which was not delivered the Commission's action. The criterion of until after the judgment of the Court of unlawfulness, which is necessary for deter- First Instance at issue, however, the Court mining liability, is therefore met. of Justice did not focus expressly on that distinction. According to the judgment in Bergaderm, the crucial point was, rather, the margin of discretion enjoyed by the institutions.

114. The admissibility of the Council's submission in its response must first be examined. In that regard it must be ascer- tained whether a cross-appeal was raised in the response, given that the Council sub- 111. It also claims that, since the Commu- mits arguments which it did not bring nity institutions enjoy a broad discretion before the Court of First Instance. 51 when applying Article 30 of the Regu- lation, the Court of First Instance should therefore have examined whether such unlawfulness on the part of the European Commission should be regarded as a mani- fest and serious infringement of a provision which confers rights on the individual.

Procedure of the Court of First Instance, 5 3 the Court of First Instance, judgment of the no new plea in law may be introduced in Court of Justice, judgment of the Court of the course of proceedings unless it is based Justice on appeal) depends in particular on on matters of law or of fact which come to the length of the proceedings before the light in the course of the procedure. Other- Court of First Instance and the Court of wise, a party could refer an issue to the Justice respectively, and the duration of one Court of Justice which is wider than that set of proceedings has no influence on that which the Court of First Instance had to of the other. Then, quite importantly, there decide. is the procedure in the appeal, however long that may take. Thus, if the judgment in Bergaderm had been delivered only after the time-limit for the response had expired, the Council would not have been able to rely on it in its response in any case. Moreover, whether the Council may make 116. Even the application to this case of the oral submissions again depends on whether case-law relating to the first paragraph of the hearing takes place at all. 56 Article 41 of the EC Statute of the Court of Justice, which concerns the revision of a judgment, points to the inadmissibility of the argument regarding the judgment of the Court of Justice in Bergaderm. A judgment in another case does not constitute a ground for revision. 54 Moreover, there is in this case no discovery of elements of a 118. Nor, however, is it possible to take factual nature, as required for a revision, let the view here that the Council's submission alone elements which existed prior to the is merely the development of an argument judgment in the case to be subject to already raised at first instance as confirmed revision. 5 5 by the Court of Justice in its case-law. 57

120. Consequently, a new argument is advanced which, according to the case-law of the Court of Justice, 58 cannot be con- sidered in an appeal. Thus, it can be best compared to a ground of appeal which raises a separate issue which is raised for the first time in an appeal. 59 122. The inadmissibility of the Council's submission could also be inferred from the judgment in Atlanta 60 which states that a submission which changes the very basis on which the Community could be held liable must be regarded as constituting a new plea in law. That applies a fortiori in the present 121. As regards the condition that there case, in which the Council refers in the must be an infringement for liability to be appeal to an act which could give rise to liability which is different from that relied on in the proceedings at first instance. 58 — In accordance with the Court's restrictive approach, not every new submission is permissible simply because it must be regarded as an argument. The crucial point is whether the argument raises new matters (Case C-450/98 P IECC v Commission [2001] ECR I-3947, paragraph 36) or whether the submission is merely the development of an argument (Case C-76/93 P, cited in footnote 57). Under those conditions the distinction between 'plea' and 'ar- gument' emphasised by Advocate General Léger in point 55 et seq. of his Opinion in Case C-41/00 P is not sufficient in itself (See Joined Cases C-280/99 P, C-281/99 P and C-282/99 P, cited in footnote 52, paragraphs 64 and 65; on case-law in general see Bölhof, Das Rechtsmittel- 123. However, the Council's submission verfahren vor dem Gerichtshof der Europäischen Gemein- schaften, 2001, 111 et seq.). would be admissible if the Court of Justice That problem is complicated even further by the fact that did not base its decision on its abovemen- not aß language versions of the provisions of the Rules of Procedure relevant to appeals refer separately to 'argu- tioned case-law but held the submission ments' in any case. For example, the German version of admissible on the ground that in its Article 112 limits itself to 'Rechtsmittelgründe (grounds of appeal)' and that of Article 115 to 'rechtliche Begründung response the Council puts forward argu- (legal grounds)'. [Translator's note: the English version uses the expression 'the pleas in law and legal arguments ments on the basis of which it considers relied on' in both cases.] Article 117 refers only to that the legal assessment of the Court of 'Gesichtspunkt (point of view)' on which an application to quash a decision is made. First Instance is incorrect. 61 However, even if it is assumed that the terms used in the Rules of Procedure and the distinction drawn therein were taken from French administrative law, that does not mean that the interpretation has to be the same because that would attribute a dynamic quality to those terms as part of 60 — Case C-104/97 P Atlanta v European Community [1999) a continually developing national legal system. ECR I-6983, paragraph 27. 59 — On the inadmissibility of that ground of appeal see Case 61 — Case C-154/99 P Politi v European Training Foundation C-64/98 P (cited in footnote 52), paragraph 18. [2000] ECR I-5019, paragraph 12.

62 — Case C-352/98 P (cited in footnote 50), paragraph 36. 63 — Case C-352/98 P (cited in footnote 50).

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OPINION OF MRS STIX-HACKL — CASE C-312/00 P

129. Of course, the parallels between State and, under certain conditions, the mere liability and Community liability were infringement of Community law. As far as already drawn in an earlier judgment in the first situation is concerned, it treats the the case of Dillenkofer. 64 That judgment institutions and the Member States in the states as follows: same way. As regards the second situation, it then mentions only the Member States in the context of that case.

130. With regard to whether the breach is sufficiently serious, the Court of Justice makes a distinction between two situations in that judgment: manifest and grave dis- regard of the limits on rule-making powers 133. Thus, in accordance with the wording it chose in Bergaderm, the Court of Justice 64 —Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 no longer restricted the application of the and C-190/94 Dillenkofer and Others v Federal Republic of Germany [1996] ECR I-4845. criterion of 'grave disregard' to cases of

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COMMISSION v CAMAR AND TICO

discretion where a 'legislative measure' is 136. According to Bergaderm, the only concerned. decisive criterion is the margin of discretion enjoyed by the institution in question and the way in which that institution exercised its discretion. Consequently, that is the criterion to be used for assessing whether the measures taken by institutions are unlawful.

134. That view is best illustrated by the clear and unequivocal finding below:

137. In the present case that means that it is immaterial whether the measure taken by the Commission is to be regarded as general or individual.

140. If it is established that the Commis- VII— Costs sion has 'considerably reduced, or even no, discretion', the mere infringement of Com- munity law is sufficient to establish unlaw- fulness. On that view (narrow margin of discretion), the Commission, as stated 143. Pursuant to Article 122 of the Rules of above, incorrectly applied Article 30 of Procedure, the Court of Justice must make the Regulation, in which case the situation a decision as to costs where the appeal is of mere infringement of Community law well founded and the Court itself gives final would arise. If, however, it is assumed that judgment in the case. Pursuant to the Commission has a broad discretion Article 69(2), which is to apply to an when applying Article 30, the mere appeal pursuant to Article 118, the unsuc- infringement of Community law is not cessful party is to be ordered to pay the sufficient to establish unlawfulness. costs if they have been asked for in the successful party's pleadings. However, pur- suant to Article 69(3), the Court may order the parties to share the costs where each party succeeds on some and fails on other heads.

— set aside the judgment in Case T-117/98 in so far as the action for annulment directed against the Commission has been declared admissible;

— declare the action in Case T-117/98 inadmissible;

— otherwise dismiss the appeal;

— order Camar and Tico, and the Commission and the Council to bear their own costs in the appeal;

— order Camar and Tico to pay the costs in Case T-117/98, order the Commission to pay the costs in Case T-79/96 and uphold points 7 and 8 of the operative part of the contested judgment concerning the costs in Case T-260/97;

— order the French Republic and the Italian Republic to bear their own costs. I -11389